New South Wales Court of Criminal Appeal CITATION: Dyer v Regina [2006] NSWCCA 274 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 30/08/06 JUDGMENT DATE: 20 September 2006 JUDGMENT OF: Hunt AJA at 1; Simpson J at 2; Whealy J at 3 DECISION: I propose that the application for leave to appeal be granted; but the appeal be dismissed. CATCHWORDS: Application for leave to appeal against severity of sentence - erroneous finding in relation to facts of co-offender's sentence - vulnerability of victim - age and mental functioning level of offender - totality principle - sentence not manifestly excessive LEGISLATION CITED: Crimes Act (NSW) Crimes (Sentencing Procedure) Act 1999 R v Henry [1999] 46 NSWLR 346 R v Murchie (1999) 108 ACR 482 R v Ibrahimi [2005] NSWCCA 153 per Latham J R v MMK [2006] NSWCCA 272 at para 8 CASES CITED: R v Gordon (1994) 71 A Crim R 469 Mill v R (1988) 166 CLR 59 at 62-63 Larsen v R (1989) 44 A Crim R per Badgery-Parker J House v The King (1936) 55 CLR 499 at 505 Lowndes v The Queen (1999) 195 CLR 665 at 671-672 PARTIES: Eric John Dyer v Regina FILE NUMBER(S): CCA 2006/1317 COUNSEL: Mr T. Watts - Applicant Mr W. Dawe QC - Crown/Respondent SOLICITORS: S. Etherington (Legal Aid Commission) - Applicant S. Kavanagh (DPP) - Crown/Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/21/1220 LOWER COURT JUDICIAL OFFICER: Knight DCJ LOWER COURT DATE OF DECISION: 11/11/05 IN THE COURT OF CRIMINAL APPEAL 2006/1317 HUNT AJA SIMPSON J WHEALY J WEDNESDAY 20 September 2006 Eric John DYER v REGINA Judgment 1 HUNT AJA: I agree. 2 SIMPSON J: I agree with Whealy J. 3 WHEALY J: This is an application for leave to appeal against sentence brought by Eric John Dyer ("the applicant"). 4 On 11 November 2005 the learned sentencing Judge dealt with a plea of guilty to an offence that on 27 March 2004 at Werrington the applicant in company with Stephen Browne and a person whose identity was unknown did rob Cemil Ates of a sum of money and a mobile telephone. This was an offence under s 97(1) of the Crimes Act 1900 (NSW). It carries a maximum penalty of imprisonment for 20 years. 5 His Honour Judge Knight sentenced the applicant to a term of imprisonment consisting of a non-parole period of one year 11 months and three days to date from 29 September 2005 and to expire on 31 August 2007. The balance of the term reflected a total term of three years five months and three days to date from 29 September 2005 and to expire on 3 March 2009. The sentencing Judge recommended that the applicant be released to parole on 31 August 2007. The sentence took into account the fact that the applicant had been in custody solely in relation to the present matter from 29 January 2005 to 24 February 2005, namely a period of 27 days. The sentence was backdated to 29 September 2005. The date was selected because, on that date, custodial sentences for other matters against the applicant expired and his custody thereafter related solely to the present matter. These aspects of the sentence imposed made it clear that the sentence represented a total term of three and a half year with a non-parole period of two years. In each case, however, the total term and the non-parole period was reduced by 27 days to take into account the prior period in custody I have mentioned. The facts relating to the offence 6 At about 9.30am on 27 March 2004 the applicant, Steven Browne and a third unknown person boarded a westbound train at St Marys Railway Station. Prior to the train reaching Werrington, the three young men approached the victim Mr Ates. They threatened the victim and demanded that he hand over a bracelet he was wearing. Browne punched the victim in the face and the third man grabbed the victim and held him for a brief period. Browne then snatched the bum bag the victim was wearing but, immediately afterwards, Mr Ates managed to get away. He ran along the train and pressed the security alert button. Browne and the third man took the $200 in cash which was in the bag and also a mobile phone. When the train reached Werrington Railway Station, the three assailants left the train and walked away. The victim remained on the train until it arrived at Penrith where he was able to contact police. The applicant was arrested at Penrith police station on 19 August 2004 where he was shown video surveillance footage taken at the two railway stations. He admitted that he was one of the people on the video at St Marys Railway Station but he would not disclose the identity of the other two persons. He agreed also that he was one of the people shown on the footage at Werrington Railway Station but said he could not remember being involved in a robbery on the train on that date. The applicant was subsequently charged with the present offence, was committed for trial on 3 December 2004 and pleaded guilty on the first day of the trial namely, 23 August 2005. The sentence proceedings were adjourned to 11 November 2005 and, as I have said, he was sentenced on that day. Remarks on sentence 7 The sentencing Judge succinctly and comprehensively identified the facts of the matter and the relevant sentencing principles. At page 3 his Honour said: - "Those facts reveal to my mind very considerable criminality. They show an offence of robbery in company and although you are not the person who actually took the goods off the victim you were quite clearly a participant in the robbery. While your part in the robbery was lesser than perhaps the other two person it still was an integral part of it". 8 The sentencing Judge then gave consideration to the subjective features relevant to the matter. He identified that the offender had been born on 23 October 1984 and that he was twenty years of age at the time he committed the offence. (This was an error because the offender was only 19 at the time). 9 The sentencing Judge, rather generously in my view, allowed a discount for plea of 15 per cent. The plea as I have indicated was not entered until the first day of the trial. His Honour then referred to the applicant's rather extensive criminal history. I say rather extensive, because of the applicant's relative youth at the time. It will be necessary for me to set out later the applicant's criminal history in some greater detail. 10 It is sufficient at the moment to say that his Honour identified that the applicant had served time under a control order as a juvenile; he had been on probation; he had received community service orders and had served a term of imprisonment as an adult. He also had served periodic detention as an adult. In particular, the sentencing Judge noted that the applicant had been placed on a s 9 bond to be of good behaviour for a period of two years from 19 September 2003 and was thus in breach of that bond at the time the subject offence was committed. Secondly, his Honour noted that at the time of the offence the applicant was the subject of an order for periodic detention imposed at Penrith District Court on 6 February 2004. The term of periodic detention commenced on 20 February 2004 with the consequence that the applicant was actually serving the term of periodic detention at the time of the commission of the subject offence. 11 The sentencing Judge noted, however that, despite the considerable criminal record, there had been no previous offence of violence to any person. 12 His Honour noted also that the applicant's general history and background had been helpfully set out in a pre-sentence report from the Probation and Parole Service dated 22 September 2005. It was further contained in an equally helpful report of Dr S. Pullman, psychologist, dated 10 November 2005. The applicant's history included the fact that his parents had separated when he was a young child and that he had no further contact with his biological father. The applicant's relationship with his mother deteriorated from about the time he was seven. The applicant's school history was less than satisfactory. At age 14 he was suspended from school and diagnosed, at the same time, as having attention deficit hyper-activity disorder. The applicant ceased taking his medication for this some six years prior to the sentencing proceedings. 13 After leaving school as the result of the suspension, the applicant gained only intermittent employment. He worked as a carpet layer for a few months and also did some work as a detailer and as a builder's labourer. He had two relationships with young women, the last of which resulted in his becoming a father some 20 months prior to the sentencing hearing. The sentencing Judge noted, in particular, that the psychological testing showed that the applicant's level of functioning was in the below average range. Dr Pullman, however, thought that the applicant had the capacity to improve his educational levels and to undertake semi-skilled vocational training. The psychologist noted that the tests showed that the applicant was severely depressed and disorganised in his thinking and that a psychiatric diagnosis of a personality disorder was likely. Dr Pullman recommended that the applicant undergo a psychiatric and pharmacological review of his current psychological symptoms and that he should be reviewed by a specialist experienced in adult ADHD. She also recommended that a drug and alcohol rehabilitation programme would be appropriate. Dr Pullman's views coincided with the opinions expressed by Elizabeth Coleman, the probation and parole service officer who had prepared the report that was placed before the sentencing court. In relation to drug and alcohol abuse, the sentencing Judge noted that the applicant had been introduced to cannabis by his mother from the age of 14 and that he had used the substance from time to time. Initially, he had used amphetamines but had refrained from the use of this drug for some years. The applicant was no stranger to binge drinking. His Honour noted that, although the applicant denied having difficulties with alcohol consumption, he was in fact intoxicated at the time of the commission of the subject offence. 14 Having dealt with the applicant's subjective features and background, his Honour turned his attention to the appropriate sentencing principles. His Honour's analysis commenced with a consideration of the guideline judgment in R v Henry (1999) 46 NSWLR 346. His Honour noted that, although Henry was a case dealing with armed robbery, the guideline in Henry had also been held to apply to robbery in company (R v Murchie (1999) 108 ACR 482). The sentencing Judge thought that the present matter was one which required a sentence slightly less than that suggested by guideline judgment in R v Henry. His Honour said: - "In my view, on the facts of this case, particularly having regard to the level of your involvement in the offence, your age and the fact that no weapon was used, a sentence of somewhat less than the four to five years is appropriate, albeit only very marginally so." 15 His Honour then considered the matters set out in s 21A of the Crimes (Sentencing Procedure) Act 1999. His Honour noted the applicant's record of previous convictions. He indicated that he would take this into account only on the basis that it disentitled the applicant to any leniency that might otherwise be available to him. Otherwise, his Honour said, it had no further impact. His Honour also noted that the offence had been committed while the applicant was on conditional liberty in the circumstances I have already outlined. The remarks on sentence then continued: - "Sub-section 2(L) is relevant – the victim was vulnerable. In this case the victim was vulnerable because he was on the bottom floor of the train and therefore was not in any position to escape from the three of you when you approached him". 16 His Honour also regarded the fact that the offence was part of a planned organised criminal activity as relevant on the issue of aggravation. He said, however, that the planning was "limited". 17 In favour of the applicant, the sentencing Judge found that the applicant had good prospects of rehabilitation. His Honour referred again to the plea of guilty and the presence of remorse in the fact of the plea. He then added: - "Taking all those matters into account, the next factor that needs to be considered is your time in custody. You were in fact in custody solely in relation to this matter from 29 January 2005 to 24 February 2005. That is a period of 27 days. Subsequently you were in custody on other matters but then again returned to custody solely in relation to this matter on 29 September 2005. In my view, having regard to McHugh's case, the proper way of sentencing you is to backdate any sentence to 29 September 2005 and also take 27 days off the sentence to take into account the 27 days you spent in custody between 29 January 2005 and 24 February 2005 and that is the course which I propose to take." 18 His Honour then imposed the sentence which I have set out earlier in this decision. Grounds of appeal 19 The applicant has relied upon four grounds of appeal in support of his application for leave to appeal against sentence. These are: - Ground 1 20 His Honour erred in considering that the offence was aggravated by virtue of the victim being "vulnerable" when his Honour had previously found (in relation to the co-accused) that the victim was not vulnerable. Ground 2 21 His Honour failed to consider s 21A(3)(j) of the Crimes (Sentencing Procedure) Act 1999. Alternatively, his Honour failed to give sufficient weight to the applicant's relative youth and below average intelligence. Ground 3 22 His Honour did not take into account other sentences the applicant was or had served at the date of imposing sentence, and thus failed to have regard to the principle of totality. Ground 4 23 The sentence is manifestly excessive. 24 The circumstances which gave rise to Ground 1 related to the sentencing of the co-accused Steven Gregory Browne. He was sentenced on 26 April 2005 in relation to three offences (three robbery in company, one robbery). A further robbery in company was taken into account on a Form 1. The offence on the Form 1 related to the incident for which the applicant was later sentenced. When sentencing Browne, his Honour had stated: - "I note the submissions made on behalf of the Crown that reference is made to sub-s 21(A)(2)(l) that the victims were vulnerable. I do not consider the victims in this case were any more vulnerable than anybody else who is the subject of a robbery". 25 It will be seen immediately that his Honour had taken a different view in relation to the issue of the vulnerability of the victim in the applicant's sentencing procedure. Of course, the applicant was not sentenced until November 2005 and it may well be that his Honour simply overlooked the finding he had made in the earlier matter. It is quite likely that no reference was made to that finding in the sentencing procedure involving the applicant. 26 Be that as it may, the question which arises is whether the applicant is entitled to have a justifiable sense of grievance arising out of the fact that the sentencing Judge took into account an aggravating feature in his matter when the same Judge had specifically rejected the existence of such an aggravating feature in the case of the co-offender Browne. 27 I do not consider that his Honour fell into error in making the finding of vulnerability in relation to the victim in the sentencing procedures involving the applicant. This was conceded by counsel for the applicant at the hearing of this application for leave. It is quite clear that a person on a train who is seated and in some way or to some degree isolated from other people on the train is particularly vulnerable. This is especially so when the victim is confronted by a group of young men bent on carrying out an assault and robbery (R v Ibrahimi [2005] NSWCCA 153 per Latham J with whom other members of the Court agreed; see also the decision of the Court in R v MMK [2006] NSWCCA 272 at para 8). 28 In these circumstances, there are two principal reasons why the ground of appeal is without substance. First, it would be wrong for this Court to perpetuate his Honour's error in the sentencing proceedings against Browne by endorsing it in the present matter. In the light of the very proper concession made by the applicant's counsel in this matter that his Honour did not err in finding the victim in the present matter "vulnerable", this must be the correct position. Secondly, the only justifiable sense of grievance which is relevant in an argument such as the present must relate to and emerge from a disparity in the sentence imposed upon one co-offender when compared to the earlier sentence. (Lowe v R (1984) 154 CLR 606; Postiglione v R (1997) 189 CLR 295) It is simply impossible to say, having regard to the complex of offences faced by Mr Browne, that considerations of parity arise in relation to the sentences imposed on him when compared with the sentence imposed on the applicant. The Court was informed that Browne received "all up" sentences for a total term of five years with a non-parole period of two and a half years. It is quite impossible to say that the inconsistent factual finding on the issue of vulnerability had any identifiable bearing on the sentence imposed, especially since the subject robbery in company was dealt with by way of a Form 1 in relation to Browne rather than by way of sentencing for a separate offence. Ground 2 29 I turn now to consider Ground 2. An issue here is the age of the applicant and the fact that his level of functioning was in the below average range. Again, I do not consider there is any substance in this ground. 30 First, the sentencing Judge clearly took into account the applicant's youth and the fact that he was of below average intelligence. That appears plainly from his Honour's remarks on sentence. It is true of course that his Honour erred in stating that the applicant was aged 20 when he was in fact only 19. On the other hand, it is clear also from the passage I have cited above that the age of the applicant was one of the principal factors involved in the Judge's decision to reduce the sentence below the guideline range in R v Henry. 31 Secondly, while the comparative youth of the applicant was a matter which was not unimportant in the consideration of his subjective circumstances, the applicant was properly to be viewed as a young adult. In such a situation, having regard to the nature of crime, general deterrence and retribution remained significant sentencing considerations. In R v Gordon (1994) 71 A Crim R 469 Hunt CJ at CL said: - "General deterrence remains of primary importance and where a youth conducts himself in a way an adult might conduct himself and commits a crime of considerable gravity, the protective function of the criminal courts would cease to operate unless general deterrence and retribution remained significant considerations in sentencing that youth." 32 His Honour was dealing with crimes of greater gravity than was involved in the present matter. In general terms, however, I am of the opinion that the principle is applicable to the present matter. 33 As to the fact that the applicant was functioning with below average intelligence, there is no suggestion in the evidence of Dr Pullman, or anywhere else in the evidence, that the applicant did not know what he was doing. Further, there was no indication in the evidence that he did not know that what he was doing was wrong. The applicant was party to a deliberate enterprise that involved surrounding the victim; threatening him with violence; seizing the bracelet he wore; punching him and taking his property. After the assault and robbery, the three participants simply walked away at the next railway station. 34 In these circumstances, the aspects of general deterrence and retribution operated as important features in the sentencing process. As I have said, the Judge clearly took into account, as relevant factors, the applicant's background and his below average intelligence. In the circumstances of the matter, these factors did not operate to devalue the importance of the principles of sentencing I have identified. 35 Ground 3 asserts that the sentencing Judge failed to have regard to the principle of totality. It should be noted at the outset that no submissions were made to his Honour in this regard. On the other hand, his Honour had the record of the applicant before him and he was clearly aware of its distinctive features, including the fact that the applicant had served periodic detention and had been in fulltime custody in the periods shortly before the sentence hearing. 36 It may be helpful if the applicant's criminal record is set out as part of these reasons. I have prepared a brief summary of it and it will be annexed to these reasons. 37 What it shows is, in some respects, not entirely clear. The focus of the applicant's submissions before this Court, however, took as its starting point the sentence imposed in the Local Court on 3 December 2003. The applicant had been sentenced to a period of 12 months imprisonment with a six month non-parole period. The offence was one of taking and driving a conveyance without the consent of the owner. The applicant appealed from this sentence and the appeal was heard in the District Court on 6 February 2004. 38 The original sentence was set aside by his Honour Judge O'Reilly. The applicant received a periodic sentence of 12 months with a non-parole period increased from six months to nine months. No doubt this seemed a favourable position to the applicant at the time but, as things turned out, it did not work entirely in his favour. On 7 May 2004, the applicant was convicted in the Penrith Local Court for driving a conveyance taken with the consent of the owner. He was imprisoned for 12 months commencing 29 March 2004 with a non-parole period of six months. On 21 April 2004 the applicant was called up by the Parole Board and the earlier periodic detention sentence was replaced with fulltime custody. Effectively, the applicant was required to serve a non-parole period commencing on 21 April 2004 and concluding on 31 December 2004. 39 The applicant later received a further sentence of three months imprisonment commencing 6 August 2004 and ending November 2004. This sentence was imposed at Parramatta Local Court on 6 August 2004 for the offence of larceny. There was yet again a further sentence imposed on 29 September 2004 for driving whilst disqualified. This earned the applicant a term of imprisonment for four months ending in January 2005. Finally, on 7 April 2005 the applicant received a further fulltime imprisonment sentence of eight months with a non-parole period of six months. The offence was one of driving while disqualified. He was also fined for driving an unregistered vehicle and being un-insured. This sentence expired on 28 September 2005. 40 It is to be noted that throughout the period between December 2003 and September 2005 the applicant was not continuously in fulltime custody. 41 The totality principle is a principle well recognised in the law relating to sentencing. In Mill v R (1988) 166 CLR 59 at 62-63 Wilson, Deane, Dawson, Toohey and Gaudron JJ said: - "The totality principle is a recognised principle of sentencing formulated to assist the Court when sentencing an offender for a number of offences. It is described succinctly in D A Thomas, Principles of Sentencing 2nd Edition, Heinemann, London, 1979, pages 56-57 as follows: 'The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregative sentence and consider whether the aggregative is "just and appropriate". The principle has been stated many times in various forms: "when a number of offences are being dealt with and specific punishment in respect of them are being totted up to make a total, it is always necessary for the Court to take a last look at the total just to see whether it looks wrong"; "when cases of multiplicity of offences come before the Court, the Court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences"." 42 For this reason, it is important, even in the absence of precise submissions, for a sentencing Court to consider whether to accumulate or partly accumulate or to make sentences concurrent. The totality of the sentence imposed on the offender must bear a proper relationship to the overall criminality involved in the various offences (Larsen v R (1989) 44 A Crim R per Badgery-Parker J, with whom the other members of the Court of Criminal Appeal agreed). 43 In addition, the principle of totality must generally inform the sentencing process when a prisoner comes to be sentenced for an offence at a time when he is already serving another sentence (Larsen at page 126). 44 It is clear that these principles, important though they be, have little, if any, relevance to the sentencing process involved in the present matter. While it is true that the applicant had been in custody for a period in 2005 until 28 September 2005 and had been in custody "on and off" between the end of 2004 and September 2005, his continuous custody to the date of sentencing related solely to the offence for which he was to be sentenced by the sentencing Judge, that is for the present offence. His periods of time in fulltime custody in the preceding two years had been, in any event, intermittent and not continuous. 45 In my opinion, for these reasons, the sentencing Judge did not fall into error in failing to recognise the principle of totality. Nor did the sentencing Judge fall into error by failing to "back-date" the sentence to a period of time prior to September 2005. 46 The final ground asserts that the sentence was manifestly excessive. I do not think it was. First, it is important to recall that a submission that a sentence is excessive or inadequate derives from the third kind of error identified in House v The King (1936) 55 CLR 499 at 505. For an error of this kind to occur, it must appear, upon the facts, that the discretionary exercise is unreasonable or plainly unjust so as to lead an appellate court to infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court at first instance. The basis of the review of discretion is the ground that a substantial wrong has in fact occurred. Secondly, it is always important for an appellate court, dealing with an appeal of the present kind, to bear in mind that the court should not substitute its own opinion for that of the sentencing Judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing Judge has exercised his or her discretion. As has been said, "the discretion which the law commits to sentencing Judges is of vital importance in the administration of our system of criminal justice"; Lowndes v The Queen (1999) 195 CLR 665 at 671-672. 47 In my opinion, the sentence in the present matter in any event, fell well within a proper range having regard both to the objective seriousness of the offence and the subjective circumstances of the applicant. There have been no statistics put before this Court to suggest that the sentence fell outside of a sound sentencing range. Moreover, the offence was a serious one and it was necessary for the Court to mark out its disapproval and denunciation of a crime of the present kind. Members of the public travelling on public transport are entitled to have the Courts of this State endorse and validate their right to travel without fear of being threatened assaulted and robbed by gangs of thuggish young men. 48 For these reasons, I do not accept that the sentence was manifestly excessive. 49 I propose that the application for leave to appeal be granted; but that the appeal be dismissed. ********** Sentencing History for Eric John Dyer Offence Date Charge Date Offence Sentence Date Sentence 25 November 2003 Take and drive conveyance w/o consent of owner 3 December 2003 12 month imprisonment with 6 month non-parole period Appealed Appeal heard on 6 February 2004 Received a periodic sentence with the total sentence of 12 months imprisonment remaining the same. Non-parole period increased from 6 months to 9 months. Drive disqualified Posses implements to enter/drive conveyance 21 April 2004 Parole Board revoked the above sentence and imposed a full time sentence of 11 months and 13 days with a non-parole period of 8 months and 11 days. Take and drive conveyance 7 April 2003 Larceny <$2000 6 August 2004 3 months imprisonment commencing 6 August 2004 23 October 2003 Driving whilst disqualified 29 September 2004 Fixed term of 4 months imprisonment 27 March 2004 29 March 2004 Driving conveyance taken w/o consent of owner 7 May 2004 12 months imprisonment with 6 month non-parole period – backdated to 29 March 2004 (non-parole period expiring on 28 September 2004) 29 March 2005 29 March 2005 Driving whilst disqualified 7 April 2005 8 months imprisonment with 6 month non-parole period backdated to 29 March 2005 – non-parole period expiring on 28 September 2005 27 March 2004 19 August 2004 Robbery in company (subject offence) 11 November 2005 3 years and 6 months imprisonment with a 2 year non-parole period. The date to be calculated from 29 September 2005. 27 days less to be served for time in custody from 28 January 2005 to 24 February 2005 (date bail granted) 25/09/2006 - Should read R v MMK not E v MMK - Paragraph(s) Cases cited on Cover Sheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.